A Simple Desultory Philippic

'Nefarious': Law professor says Supreme Court signaled bias for Trump with recent ruling https://t.co/g6ojHjaCAB

— Raw Story (@RawStory) February 29, 2024

The problem is that this is going to feel to a lot of folks watching at home, like the Court is by and for former President Trump, another 7 or 8 weeks, gosh, maybe even three months when you factor in how long it will take the Court to rule of delay in the January 6 prosecution — even in a context in which I still think it's likely that Trump is going to lose," he said. "And I think this gets to the broader problem, which is as these cases get backed up against the timing of the election year, every little delay on the Court's part looks like it is nefarious; looks like it's substantive, and bodes at least in the short-term well, for former President Trump." 

Vladeck found it impressive "how fast the court moved to hold argument in that case" where it took about five weeks to weigh in versus the immunity case which clocked in closer to seven or eight weeks. 

"And yet, even though it's now it's been gosh, three weeks tomorrow since the oral arguments, still no decision... what that suggests to me is that the Court really doesn't feel like it's in a hurry.

If I understand correctly:

A) if the Court moves quickly (a la the Watergate tapes case, where the Court heard arguments on July 8, 1974, and issued their opinion on July 24, 1974. (Is it relevant Nixon first refused to release the tapes on July 23, 1973? It’s only relevant because it took that long for the issue to get to the Supremes, because Jaworski and the House were both after them, on separate tracks.), then they are on the side of Trump’s enemies. (Nixon lost the tapes case. I don’t remember anyone pointing out which President appointed who on the Burger Court. Now it seems to be a reflexive element of reporting on any federal judge today.)

B) if the Court moves deliberately, it’s on Trump’s side.

C) The Court has signaled in oral arguments that it disfavors applying clause 3 of the 14th to Presidential candidates. But it hasn’t ruled, and now Illinois has blocked Trump from their primary ballot. I still don’t see how that’s a Constitutional crisis in the making, but challenging the signatures needed to get him on the ballot is no big deal; especially if the challenge succeeds? Isn’t that federalism? Is there a Constitutional right to Democrats and Republicans being on state ballots, but not third party candidates?

I’m sorry, I’m wandering.

D) if the Court rules against Trump on immunity, it’s put a thumb on the electoral scales.

E) If the Court rules for Trump on immunity, it’s put a thumb on the electoral scales (among other things)

F) Whatever the Court does in the 14th Amendment question, it’s put a thumb on the electoral scales.

Have I got that right?

The authority of the Court rests on acceptance of the validity of its rulings, and only secondarily on the reasoning. The reasoning of Roe was harshly critiqued by sharp legal minds who liked the outcome, for 50 years. Dobbs, most understand, was not nearly so well argued. It’s the outcome of Dobbs, though, that’s the real problem. Ditto Bush v Gore. That was a hasty decision because of the deadline set by the Electoral Count Act. But everyone just knows it as a bad decision, where the Court put its thumb on the scales.

But Brown v Board? Miranda? Gideon? Even Griswold (which treads on the same ground as any argument for government bans on IVF)? Most people can’t explain the reasoning (or how Dobbs directly threatens Griswold); but they are very comfortable with the results.

That said, it does matter how the Court decides the immunity issue and the 14th Amendment question, and I don’t just mean what the result is. The reasoning is important. Can the Roberts Court do what the Burger Court did, in 16 days? That is, write a unanimous opinion that is almost universally accepted? Not today they can’t, and not just because of who’s on the Court. But this issue of immunity hasn’t been pending for nearly a year, and it doesn’t involve the sitting President and a “cancer on the Presidency.” So while the sense of urgency might be strong, this is not 1973-1974 redux. Nixon had a lot of power Trump doesn’t have right now. It’s ultimately up to we, the people, to see that he never gets it.

We are acting like a nation of children upset that Christmas isn’t coming fast enough, and afraid Santa won’t bring us what we asked for.

That, she said, is "the way that the question is framed." "Whether and if so to what extent a former president enjoys presidential immunity from criminal prosecution for conduct alleged to involve official acts. There are some tells there in the language," Rubin said. "As lawyers, our professional hazard is to parse words too closely. The phrase alleged to. Alleged by who? If you ask Jack Smith, everything they are alleging is outside of Donald Trump's official purview as president by interfering with an election over which a president has no administrative responsibility. Nothing about this is official. Alleged is by him." 

She continued: 

"The Supreme Court is essentially giving in to his reframing of the question. And then the D.C. Circuit and ruling said that he has no categorical immunity. They have reframed it, whether and if so to what extent? They are opening the door to that there is a possibility that a president could have immunity to some subcategory of official actions, but not as to others."

 That’s Lisa Rubin trying to parse the one page order issued by the Court today (without, again, noting this action is pursuant to a request by Jack Smith). I will only note that Ms. Rubin’s last foray into Court Kremlinology was to assert the opinion on this case was being held up by Alito’s draft of a dissent.

Maybe the better course of action is to wait until Christmas morning before we decide whether we’re happy with what Santa brought us. Or just wait for a final ruling and critique that.

The Supreme Court is not Santa Claus. It’s not going to bring us the elimination of Donald Trump before November 5, 2024. The Supreme Court is neither democracy’s savior, nor its deus ex machina. Nothing is going to save us from the responsibility of doing the right thing ourselves.

Whatever the Court does is going to be seen as “election interference” by somebody. And the more we expect the courts to save our democracy by ruling the right way, the more we the people distort, and distrust, our constitutional system. It works pretty well for us. But it doesn’t work in spite of us. If we want to save the Republic, we have to do it ourselves.